PAROLE |
Le v. Canada (Attorney General)
T-2015-98
2001 FCT 156, MacKay J.
7/3/01
12 pp.
Judicial review seeking mandamus to require National Parole Board to recalculate applicant's day parole, full parole eligibility dates--Also seeking declaration Corrections and Conditional Release Act, which came into force on November 1, 1992 applies only to sentences imposed after that date, and that former Parole Act applies to any sentence previously imposed--Applicant inmate in federal penal institutions as result of 19-year sentence imposed October 13, 1992--On December 24, 1994 received additional sentence of one year for prison breach, to be served consecutively--On June 17, 1996 received further sentence of eight years for conspiracy to traffic in heroin, to be served consecutively to 20-year sentence then serving--Before receiving eight-year sentence, applicant informed "full parole eligibility" seven years from date of initial sentence, eligibility for day parole six months prior to full parole date--After receiving eight-year sentence on June 17, 1996 advised eligibility date changed for day parole to August 12, 2001, and for full parole to February 12, 2002--Eligibility determined entirely under Act as amended by Bill C-45 coming into force January 24, 1996--Dates for day, full parole postponed by almost three years--Eligibility for day parole to be determined subject to s. 119(1)(c), i.e. six months before day on which full parole granted--Application of s. 119(1)(c) confirmed by s. 225(1.1)--Where one receiving sentence to be served consecutively to sentence already being served calculation of eligibility for full parole subject to ss. 120.1(1), 139(1), 225(1.1)--S. 139(1) providing offender deemed to have been sentenced to one term commencing at beginning of first sentence, ending on expiration of last sentence--Following imposition of eight-year sentence in June 1996, sentence deemed to be 28 years--Under s. 120.1(1), coming into effect January 24, 1996 (before applicant's eight-year sentence imposed), applicant not eligible for full parole until served, commencing on June 17, 1996, remaining portion of ineligibility in relation to sentence serving when eight-year sentence imposed, and period of ineligibility in relation to additional sentence--Period of ineligibility in relation to eight-year sentence under s. 120(1), one-third of sentence of eight years, or two years and eight months--After January 1996 that period required to be served in addition to period of ineligibility remaining from previous sentence--Those portions basis of calculations by Correctional Service which provided advice to applicant--Applicant's interpretation not taking account of amendments introduced in 1996 before sentenced to further eight-year consecutive sentence--Those amendments make clear Parliament's intention that those receiving consecutive sentence after November 1, 1992 should serve, as minimum term of eligibility for parole, full unexpired period ineligible for parole under original sentence plus ineligible portion of consecutive sentence--Amendment not applying Act retrospectively as applied to applicant only after sentenced following amendment of Act to consecutive sentence for further offence--S. 120.1(1) dealing specifically with applicant's case as one who was serving sentence, subsequently received additional sentence to be served consecutively--Revises basis on which ineligibility for parole determined--S. 120.3 then providing different cap of ineligibility i.e. 15 years from day on which last of sentences imposed as maximum period of ineligibility before consideration for parole--Relief should have been sought in relation to Corrections Canada, having responsibility for determining release, eligible parole dates under Act--Application dismissed--Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 119(1)(c) (as am. by S.C. 1998, c. 35, s. 111), 120(1) (as am. idem, s. 112), 120.1(1) (as enacted by S.C. 1995, c. 42, s. 34 ), 120.3 (as enacted idem; as am. by S.C. 1998, c. 35, s. 114), 139(1) (as am. by S.C. 1995, c. 42, s. 54), 225(1.1) (as enacted idem, s. 62)--Parole Act, R.S.C., 1985, c. P-2.